A. Conclusions

The generic and site-specific deficiencies in NRC radiological surveillance programs are symptomatic of a pattern of NRC and NRC licensee noncompliance with federal regulations. These deficiencies in documentation of the radiological impact of NRC licensee reactor operations and decommissioning in restricted and unrestricted areas are a prelude for establishing credible site release criterion. This subset of noncompliance issues in turn refers to a broad area of NRC and NRC licensee noncompliance with federal law. Many of these issues are generic in nature and have been a matter of controversy for decades (e.g. the Department of Energy's current failure to accept licensee spent fuel.) Others involve site-specific violations such as the Maine Yankee Atomic Power Company power up-rate scam. A number of conclusions can be drawn from the brief overview presented in this report:

1. The Nuclear Regulatory Commission has tolerated and, in fact, encouraged gross violations of both 10 CFR 20.1302: "The licensee shall make or cause to be made, as appropriate, surveys of radiation levels in unrestricted and controlled areas and radioactive materials in effluents released to unrestricted and controlled areas to demonstrate compliance with the dose limits of individual members of the public in §20.1301" and 10 CFR 20.1501: "(a) Each licensee shall make or cause to be made, surveys that-- (1) May be necessary for the licensee to comply with the regulations in this part; and (2) Are reasonable under the circumstances to evaluate-- (i) The extent of radiation levels; and (ii) Concentrations or quantities of radioactive material; and (iii) The potential radiological hazards that could be present."

2. The NRC has demonstrated a willingness to overlook its own failure to oversee the appropriate application of the above radiation protection standards. The failure to maintain a comprehensive routine radiological surveillance database documenting residual radioactivity in unrestricted areas adjacent to, as well as restricted areas of NRC licensee operations, is a generic deficiency which references numerous other questionable oversight activities. This failure to collect routine radiological surveillance data not only undercuts the bases for a credible determination of the validity of site release criterion, it also leads to the most chilling and ominous consequence of these deficiencies: the inability of the federal government to accurately determine the environmental impact of a nuclear accident originating in any location (e.g. domestic reactor accidents or a foreign nuclear weapons depot disaster, fuel reprocessing facility accident or mishap at a foreign reactor site, a nuclear exchange between India and Pakistan, etc.) This observation can be made despite the concerted efforts of the NRC to assure the safe operation of the aging nuclear reactors under its supervision.

3. The generic failure to adequately fund the decommissioning process and the monitoring, storage, administration, transportation and disposal of nuclear wastes at the time they are created gives rise to a variety of violations of federal law and has vast public safety implications. The Nuclear Waste Policy Act of 1982, Section 302 pertaining to full waste cost recovery as well as the general requirements for decommissioning nuclear facilities (10 CFR Parts 30, 40, 50, 51, 70 and 72) are very explicit in their mandates. Section 302 states specifically that "All costs related to the waste disposal services will be paid for by the owners and generators of spent nuclear fuel." In the case of MYAPC, its ratepayers are the titleholders to 1,432 spent fuel assemblies; by federal law, these wastes are ratepayer entitlements. Unfortunately, the NRC and Federal Energy Regulatory Commission (FERC) ignored the spirit and intent of the law and the full cost of waste storage and disposal was not collected at the time the wastes were generated. This failure to fund is further manifested in the decommissioning process by a lack of NRC and NRC licensee staff and resources to oversee a safe and efficient execution of the decommissioning and waste disposal processes. The high cost of updating antiquated radiological monitoring databases is one of many unfunded obligations which result from this gross failure of federal oversight.

4. The insularity of the NRC from the consequences of noncompliance with federal law originates from the broad powers delegated to the Atomic Energy Commission by the Atomic Energy Act of 1954. The Energy Reorganization Act of 1974 transferred these broad powers to the NRC. The perquisites conferred by these legislative acts in no way excuses the NRC from the broad pattern of noncompliance and violation of due process and equal protection under the law which are a result of the failed oversight of the Nuclear Regulatory Commission.

5. The oversight activities of the NRC, including the deficiencies, inconsistencies and evasions discussed in this report, have given rise to a broad pattern of NRC licensee activities that have an uncanny similarity to the patterns of activity which constitute racketeering as defined in Title 18 Sections 1861 and 1862 of the United States Code. In particular, the SBLOCA (small break loss-of-coolant accident) thermal power up-rate violations are examples of illegal acts which constitute the predicate crimes which are the bases for a Title 18 prosecution. The irony of these activities is that they are a component of a federally sponsored rather than a federally prosecuted pattern of illegal activities. Were MYAPC a private company which had executed the power up-rate scheme, the Department of Justice would have been much more enthusiastic in the prosecution of these activities. The DOJ has historically been a passive accessory to the arcane and inscrutable labyrinth of NRC licensee noncompliance with federal law which would only have been of interest if brought to the attention of the DOJ by the NRC Office of Investigation (OI). Such was the case with the thermal power up-rate scam which the NRC Office of Investigation referred to the U.S. Attorney for Maine for investigation and prosecution. An OI report (May 8, 1996, Case number 96-04S) notes: "Specifically, it was alleged that YAEC management knew that the ECCS for Maine Yankee, if evaluated in accordance with 10 CFR Section 50.46 using the RELAP5YA code, did not meet the licensing requirements for either 2630 M_wt or 2700 M_wt power up-rates that had previously been granted and that deliberate misrepresentations were made to the NRC in order to obtain the 2700 M_wt power up-rate. It was further alleged that MYAPC applied for power up-rates on the basis of a fraudulent containment analysis" (U.S. NRC, May 1996, Office of the Inspector General Event Inquiry, pg. 3). The Department of Justice was unsuccessful in its prosecution of these illegal activities for reasons which are not yet known because the NRC has not allowed public review of its Office of Investigation (OI) report.

6. The fundamental thrust of NRC licensee noncompliance with federal law and of the NRC's failure to act on this noncompliance pertains to the profit motive. The failure of federal oversight allows NRC licensees to avoid the timely collection of funds essential to decommissioning and waste disposal. As the decommissioning process proceeds at the Maine Yankee Atomic Power Company, this propensity to evade the expense of funding these obligations is superseded by the equally urgent need to evade the collection of these overdue payments whenever possible. The result is a frantic rush to decommission MYAPC regardless of the consequences. Evasion of documentation of environmental impact is a predicator of an industry-wide NRC sponsored attempt to exploit waste misclassification for its economic benefits. As a result, an attempt will be made to site MYAPC GTCC reactor components including long-lived reactor vessel dross as low-level waste in Barnwell, S.C. and/or in other locations. The deficiencies in radiological surveillance programs and databases and the concomitant failure to disclose accidents, spills and leakage at MYAPC when they occurred are just one small fragment of this legacy of evasion and deception.

7. An appropriate description for these evasions, including the predicate activities of the power up-rate scam at MYAPC, is the traffic in nuclear waste. An overview of potential violations of the U.S. Code including Title 18, Sections 1961 and 1962, which MYAPC would be subject to prosecution for as a private company, include the following: USC §1341 mail fraud, §1343 wire fraud, §1951, n147 payment induced by fear of economic loss, §1952 interstate travel and §1957 engaging in monetary transactions in property derived from specified unlawful activity (utility ratepayer moneys). Violations of Title 18 §1510, obstruction of criminal investigation and §1512 tampering with a witness, have already been addressed in part by a plea bargain with former NRC Site Inspector Trottier. The patterns of noncompliance referenced by deficiencies in radiological surveillance programs and site characterization give rise to three observations, the consequences of which cannot be evaded.

8. No legal basis exists for continuing the decommissioning process at the MYAPC other than mothballing the Wiscasset facility in a safe storage mode. In the rush to decommission this facility, the licensee has demonstrated gross incompetence in the form of an inadequate Preliminary Site Decommissioning Activities Report (PSDAR). In addition, the licensee has failed to evaluate the significance of a large body of secondary research which clearly documents plant-derived residual radioactivity in offsite locations such as Montsweag Bay. The significance of this omission is that the licensee cannot legally proceed with decommissioning activities until a comprehensive survey of residual radiation in adjacent estuarine environments is executed. The documentation of soil contamination within and adjacent to MYAPC further complicates this obligation. This will delay the decommissioning process and increase the liabilities licensee ratepayers must fund in the future. The deficiencies in the historic assessment of the impact of plant operations and decommissioning are, however, only one of many factors mandating the use of the safe storage decommissioning alternative rather than prompt deconstruction.

9. The NRC and the licensee have no legal basis for siting the reactor vessel with its intensely radioactive GTCC reactor vessel internals intact in an uncontained landfill. The licensee hopes to site the reactor vessel (which also includes dross consisting of long-lived hot particles, spent fuel fragments, CRUD and corrosion and activation products) in a landfill in Barnwell, S.C. This primitive radioactive waste dump is the licensees only viable disposal option under current circumstances other than onsite safe storage of the reactor vessel utilizing the existing reactor vessel containment building as shielding. The alternatives of segmentation and/or siting the reactor vessel intact at the Texas low-level waste site are neither safe nor cost-effective. The Texas low-level waste compact is a particularly impractical alternative to onsite safe storage of the reactor vessel and its GTCC internals. Use of the dubious Barnwell location will likely subject MYAPC ratepayers to future litigation and remediation costs. Monitored retrievable storage is the only legal alternative for reactor vessel disposal, and the most practical, cost-effective location for the monitored retrievable storage of the MYAPC reactor vessel is just where it is presently located: next to what will soon be the independent spent fuel storage installation (ISFSI) for MYAPC-derived spent fuel at the Wiscasset site.

10. The ironic consequence of deficiencies in NRC radiological surveillance programs is that the routine radiological monitoring database necessary to validate the site release criterion of 25 mrem/yr total effective dose equivalence (TEDE) for members of the general public does not exist. No such determination of residual radiation (of all radionuclides in all pathways) is possible given the historic, dogged, if not neurotic, NRC focus on surface contamination. A comprehensive study of the quantities and pathways of residual radiation derived from nuclear reactor operations such as MYAPC has never been executed. Validation of the site release criterion or any other radiation protection guideline is therefore impossible.

The deficiencies and noncompliance discussed in this report can only be addressed legislatively. This would best be done by the drafting of an entirely new Nuclear Waste Policy Act. The following recommendations summarize reforms which are essential to the safe, efficient, economical and ethical monitoring, storage and disposal of radioactive waste:

1. Establish a two-tiered system of radioactive waste disposal options, one for truly low-level wastes (1/2 T = < 5 years) and the other for medium- and high-level wastes and spent fuel. (See comments earlier on misclassification of radioactive waste.)

2. Recognize that uncontained land disposal, including geological disposal of medium- and high-level wastes, is not presently an option at any location except the Waste Isolation Pilot Plant (WIPP) in Carlsbad, N.M. and may not be a future option at the Yucca Mountain site now under development by the Department of Energy. Monitored retrievable storage (MRS) of all medium- and high-level wastes and spent fuel will be the likely sole option for an indefinite time period, other than for the transuranic wastes now scheduled for the WIPP repository.

3. If one centralized MRS facility (e.g. Yucca Mountain, redesigned for monitored retrievable storage) is not available due to political opposition, dysfunctional federal policies or the lack of scarce public resources, storage of medium- and high-level wastes and spent fuel will have to revert to a uniform system of onsite MRS, with wastes stored in the location at which they were generated.

4. The most essential ingredient in an updated Nuclear Waste Policy Act is the reform of misclassified nuclear wastes. The current deceptive misclassification of radioactive waste undermines the public confidence necessary for the successful safe siting of long-lived wastes. The programs designed to site spent fuel must be expanded to include:

a. greater-than-class C wastes in reactor vessel internal components
b. highly radioactive class C wastes, also mostly reactor vessel internal components
c. long-lived transuranic wastes and fission products contained in class B resins derived from filtering reactor coolants and other sources
d. any radioactive wastes from any source having a half life greater than five years and existing in volumetric concentrations greater than 1,000 Bq/kg
e. all transuranic isotopes from any source existing in volumetric concentrations greater than 100 Bq/kg.
The reclassification of radioactive waste would only add a small volume of additional waste to the spent fuel disposal program. By eliminating these highly radioactive and/or long-lived isotopes from the low-level waste flow, a long-standing violation of public trust will be eliminated. Public confidence essential to siting radioactive wastes in any location would be restored and immense savings would result in low-level waste disposal costs. Legitimate generators of low-level wastes such as medical and research facilities would no longer be held hostage to an illegal, deceptive and unworkable waste classification system.

5. The practical implications for NRC licensees such as MYAPC would be that instead of the illegal dumping of greater-than-class C wastes in uncontained landfills such as that at Barnwell, S.C., the decommissioning process would revert to onsite safe storage of the reactor vessel in the existing containment building until such time as an appropriate and functional federal medium- and high-level waste and spent fuel disposal program was implemented. Highly radioactive greater-than-class C as well as class C reactor vessel internal components would remain within the reactor containment saving the costs and risks of either segmentation, or transportation by barge and rail of an unwieldy reactor vessel (e.g. MYAPC's 706 ton reactor vessel with a 300 ton concrete shield.) Long-lived fission product resins (class B wastes) would also be stored onsite until a more practical federal program of waste disposal takes effect. Onsite storage also eliminates the risks of disturbing and releasing long-lived hot particles, CRUD, and corrosion and activation products in reactor vessel dross.

6. Any future Nuclear Waste Policy Act must include updating of antiquated radiological surveillance programs. Such reforms must include:

a. accurate documentation of background radiation from anthropogenic sources as the first line of defense against nuclear accidents and nuclear exchanges of the future
b. full disclosure of the cumulative fallout index for biologically significant radionuclides from all sources such as ¹³⁷Cs, ⁹⁰Sr, ²³⁹Pu and ²⁴¹Am as well as other isotopes such as ⁹⁹Tc
c. more comprehensive and less deceitful radiological surveillance programs at NRC licensed reactors. Such programs would include the elimination of artificial reporting levels and the documentation of contamination to the lowest limit of detectability of the available equipment.
d. full disclosure of all nuclear accidents, spills, leakage and unusual events such as the recently documented accident at MYAPC
e. inclusion of hard-to-detect (HTD) long-lived isotopes such as the transuranics in monitoring programs such that microcontamination at any concentration level is documented. This means extending 10-61 analyses to routine monitoring programs.
f. the execution of surveillance programs with sufficient data points to document ubiquitous reactor-derived isotopes such as ⁵⁸Co, ⁶⁰Co and ¹³⁷Cs isometrically. This would especially apply to soil and sediment contamination in the vicinity of all NRC licensed reactors.
g. the implementation of surveillance of all offsite areas impacted by reactor operations; this would mean being more truthful about "affected" versus "unaffected" ecosystems
h. analysis of all pathways to human consumption and/or exposure including the ingestion pathway as an alternative to the current emphasis on surface contamination (external exposure pathway)
i. in particular, the execution of more extensive sampling of sensitive bioindicators. In the case of a facility such as MYAPC, located adjacent to a marine environment, this would include additional surveillance of more sensitive sea vegetables (e.g. fucus Vesiculosis) as well as of oysters, mussels and clams.
j. extension of requested reporting levels to include all data about all radioisotopes in all ecosystems at or above background levels of contamination.
7. Any reform must also include the upgrading of NRC guidelines and site investigation manuals such as MARSSIM to include mandatory, comprehensive, site-specific analyses of the environmental impact of plant operations.

8. Effluent release data availability must be upgraded to allow more accurate evaluation of the impact of plant releases. Full disclosure of all radiological incidents and events including deliberate and routine discharges with the potential to impact public safety is an essential component of this reform process.

9. Any future Nuclear Waste Policy Act (NWPA) should include provisions for the full disclosure of all information pertaining to the radiological impact of reactor operations. Such full disclosure would include documentation of spent fuel inventories and all reactor vessel wastes including GTCC, class C and other wastes and a characterization of the dross, CRUD and hot particles within the rector as well as any other wastes stored onsite. It must also include reporting and documentation of all spills and leakage at the time they occur.

10. Any revised Nuclear Waste Policy Act should also include provisions for site-specific Environmental Impact Statements (EIS), public hearings, meetings and full access of the public to all information pertaining to reactor operations in so far as they impact public safety and public finance.

11. Mandate full funding of radioactive waste monitoring, storage, administration, transportation and disposal of radioactive wastes at the time these wastes are generated as required by the generic constitutional obligations of due process and equal protection before the law contained in the Bill of Rights in the U.S. Constitution.